Trump Administration’s Targeting Of International Students Jeopardizes Free Speech And Privacy Online

The federal government is usingsocial media surveillancetotargetstudent visa holders living in the United States foronline speechthe Trump administration disfavors. The administration has initiated this new program, called Catch and Revoke," in an effort to revoke visas, and it appears to be a cross-agency collaboration between the State Department, the Department of Homeland Security (DHS), and the Department of Justice. It includes a dedicatedtask forceand the use ofAIand other data analytic tools to review the public social media accounts of tens of thousands of student visa holders. Though the full scope remains unclear, current reports indicate that the administration is surveilling forpro-Hamas" sentiment,antisemitic activity,"or even justconduct that bears a hostile attitude toward U.S. citizens or U.S. culture."At the time of publishing of this blog post, the federal government has already revoked over1600 student visasfor a variety of reasons.

This social media surveillance program is an alarming attack on freedom of speech and privacy-for both visa holders here in the United States and their American associates.

A Dangerous Erosion of Free Speech

While there is somenuancein the interplay between freedom of speech and immigration law, one principle is evident: foreign nationals who currently reside in the U.S.-including student visa holders-are protected by the First Amendment. The Supreme Court stated inBridges v. Wixon(1945) that [f]reedom of speech and of press is accorded aliens residing in this country."

First Amendment-Protected Political Speech

Revoking student visas based, in part, on what students have said publicly on social media is especially constitutionally problematic given that the Trump administration is targeting core First Amendment-protected political speech. As the Supreme Court stated inMills v. Alabama(1966), a central purpose of the First Amendment is to protect the free discussion of governmental affairs," whether on political issues, public officials, or how the government should operate.

The administration is targeting non-citizen students forpro-Hamas," antisemitic, and even just pro-Palestinian speech. Yet what falls under these categories is vague and not clearly defined. For example, the administrationdetaineda Georgetown University researcher due to social media posts that are critical of Israel, but do not express support for Hamas.

More importantly, even controversial or offensive speech fallswithinthe protections of the First Amendment. There are several categories of speech that do not enjoy First Amendment protection, includingtrue threats of violence,inciting imminent violence, and providingmaterial support for terrorism. However, short of rising to that level, the student speech targeted by the administration is protected by the First Amendment. Worse still, the administration is broadly going after students who simply appear to besocial activists"or are engaged in speech that is genericallyanti-American."

Such an overbroad social media surveillance and visa revocation program-one that sweeps in wholly lawful speech-strikes at the heart of what the First Amendment was intended to protect against.

Chilling Effect

Social media surveillance motivated by the government's desire to punish political speechwillchill(andcertainly has already chilled) student visa holders from speaking out online.

The Supreme Court stated inLamont v. Postmaster General(1965) that a government policy that causes individuals to feel some inhibition" in freely expressing themselves is at war with the uninhibited, robust, and wide-open' debate and discussion that are contemplated by the First Amendment." More recently, Supreme Court Justice Sotomayorexpressedin a concurring opinion that [a]wareness that the Government may be watching chills associational and expressive freedoms" guaranteed by the First Amendment.

In other words, student visa holders are more likely to engage in self-censorship and refrain from expressing dissenting or controversial political views when they know they're being surveilled. Or they may choose to disengage from social media entirely, to avoid the risk that even seemingly harmless posts will affect their visa status and their ability to continue their education in the United States.

Student visa holders may also limit whom they connect with on social media, particularly if they fear those connections will have political views the current administration doesn't like. The administration hasnotexpressly stated that it will limit its surveillance only to the social media posts of student visa holders, which means it may also look at posts made by those in the students' networks. This, too, undermines the First Amendment. The freedom to associate and express political views as a group-particularly controversial ones"-is a fundamental aspect of freedom of speech, as the Supreme Court stated in its landmarkNAACP v. Alabama(1958) decision.

American Citizens Impacted

Because student visa holders' social networks undoubtedly include U.S. citizens, those citizens may also be subject to social media scrutiny, and therefore will also be chilled from freely speaking or associating online. Government agents have previouslyheld visa holders responsiblefor the activity of their social media connections. Knowing this, a U.S. citizen who has a non-citizen friend or family member in the U.S. on a student visa might hesitate to post criticisms of the government-even if fully protected by the First Amendment-fearing the posts could negatively impact their loved one. Ageneral climateof government surveillance may also lead U.S. citizens to self-censor on social media, even without any foreign national friends or family.

A Threat to Digital Privacy

Social media surveillance, even of publicly available profiles and especially with automated tools, can invadepersonal privacy. The Supreme Court hasrepeatedlyheldthatthe government's collection and aggregation of publicly available personal information-particularly when enhanced by technology-can implicate privacy interests. The government can obtain personal information it otherwise would not have access to or that would usually be difficult to find across disparate locations.

Social media aggregates personal information in one place, including some of the most intimate details of our lives, such as our health information, likes and dislikes, political views and religious beliefs, and people with whom we associate. And automated tools can easily search for and help find this information. Even people who choose not to post much personal information on social media might still be exposed by comments and tags made by other users.

Constitutional Harms are Exacerbated by Automated Tools

The Trump administration is reportedlydeployingartificial intelligenceand other automated tools to assist in its review of student visa holders' social media posts. While facts are still coming to light, any form of automation is likely toamplifyspeech and privacy harms to student visa holders.

By the government's own assessment in another context-evaluating the admissibility of visaapplicants(discussed below)-social media surveillancehas not proven effectiveat assessing security threats.

Human review of public social media posts is itself prone to problems. Social media posts are highly context-specific, and government officials often have trouble differentiating between sarcasm, parody, and exaggeration from unlawful support for controversial causes. This leads tomistakesandmisinterpretations. For example, in 2012 an Irish citizen wasturned back at the borderbecause DHS agents misinterpreted two of his Twitter posts: one, that he was going to destroy America" - slang for partying - and two, that he was going to dig up Marilyn Monroe's grave" - a joke. These mistakes are even more likely when the posts arenot in Englishor when they containcultural references.

Human review augmented by automated tools is just as bad. Automated tools also have difficulty understanding thenuances of language, as well as the broader context in which a statement was made. These algorithms are also designed to replicate patterns in existing datasets, but if the data is biased, the technology simplyreinforcesthose biases. As such, automated tools are similarly prone to mistakes and misinterpretations. Yet people often defer to automated outputs thinking they are correct or fair simply because a computer was used to produce them. And in some cases, decision-makers may even use these tools to justify or cover their own biases.

Most concerning would be if automated systems were permitted to make final visa revocation decisions without any human review. As EFF has repeatedly stated, automated tools should never get the final say on whether a person should bepoliced,arrested,denied freedom, or, in this case, stripped of a student visa and forcibly barred from completing their education.

Government Social Media Surveillance is Not New-and is Expanding

That the Trump administration is using social media surveillance on student visa holdersresidingin the United States is a disturbing apparent escalation of a longstanding trend.

EFFhas long sounded the alarmon the civil liberty harms of governmentsocial media surveillance. In particular, since 2019, visaapplicantshave beenrequired to discloseall social media accounts they have used in the last five years to the U.S. government. That policy is the subject of an ongoing lawsuit,Doc Society v. Pompeo, in which EFF filed anamicus brief.

Secretary of State Marco Rubio recentlyupped the antebyorderingofficials to deny visas to new or returning student applicants if their social media broadly demonstrates a hostile attitude toward U.S. citizens or U.S. culture (including government, institutions, or founding principles)." Notably, Rubio indicated this standard could also apply to current student visa holders. The State Department also announced it will review the social media of any visa applicant who has been toGaza since 2007.

The Trump administration has alsoproposeddramatically expanding social media scrutiny by requiring non-citizens already legally residing in the U.S. to disclose social media accounts on a variety of forms related to immigration benefits, such as people seeking lawful permanent residency or naturalization. U.S. Citizenship and Immigration Services (USCIS), a component of DHS, also announced it would look forantisemitic activity"on social media to deny immigration benefits to individuals currently in the country.

Protecting Your Accounts

There aregeneral stepsyou can take to better protect your social media accounts from surveillance. Understand, however, that the landscape is shifting rapidly and not all protections are foolproof. Law enforcement may be able to get a warrant for your private information and messages if a judge is convinced there is preliminary evidence supporting probable cause of criminal activity. Andnon-governmental individuals and groupshave recently used other forms of technology like face recognition to identify and report student activists for potential deportation. You should conduct your ownindividualized risk assessmentto determine what online activity is safe for you.

Still, it never hurts to better secure your online privacy. For your current social media accounts, consider locking them down:

• Make public accounts private and ensure only approved connections can see your content. Note that if your past public posts have already been copied and saved by an outside party, making your account private will not undo this. It will, however, better protect your future posts.
• Some platforms make certain information publicly viewable, even if you've made your account private. Other information may be public by default, but can be made private. Review each platform's privacy settings to limit what information is shared publicly, including friend lists, contact information, and location information.
• You should also review your friends or followers list to ensure you know every person you've approved, especially when making a once-public account private.

If you create a new social media account:

• Query whether you want to attach your legal name to it. Many platforms allow you to have a pseudonymous account.
• When setting up the account, don't provide more personal information than is necessary.

EFF's Surveillance Self-Defense guideprovides additional information on protecting your social media accounts from a variety of actors. If you're not sure what information is publicly available about you on social networks or other sites, considerdoing some researchto see what, if anything, others would find.

By targeting international students for broad categories of online speech, this administration is fostering a climate of fear, making students anxious that a single post or errant like" could cost them their U.S. visa or even lead to detention and deportation. This will, ultimately, stifle political debate and silence dissent-for non-citizens and citizens alike-undermining the open dialogue crucial to democracy.

Originally published to the EFF's Deeplinks blog.